Cause of Action Inst. v. U.S. Dep't of Justice, Civil Action No. 16–2226 (RBW)

• Decision Date: 10 October 2017
• Docket Number: Civil Action No. 16–2226 (RBW)
• Citation: 282 F.Supp.3d 66
• Parties: CAUSE OF ACTION INSTITUTE, Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Defendant.
• Court: U.S. District Court — District of Columbia

282 F.Supp.3d 66

CAUSE OF ACTION INSTITUTE, Plaintiff,

v.U.S. DEPARTMENT OF JUSTICE, Defendant.

Civil Action No. 16–2226 (RBW)

United States District Court, District of Columbia.

Signed October 10, 2017

Lee A. Steven, Russel James Valvo, III, Cause of Action Institute, Washington, DC, for Plaintiff.

Nelson Dietrich Wagner, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

The plaintiff, Cause of Action Institute (the "Institute"), brings this civil action against the defendant, the United States Department of Justice (the "Department"), alleging that the Department violated the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2012), by improperly withholding records responsive to its FOIA request. See Complaint ("Compl.") ¶ 1. Currently pending before the Court are the Department of Justice's Motion for Summary Judgment ("Def.'s Mot."), ECF No. 12, the Cause of Action Institute's Response to Department of Justice's Motion for Summary Judg[ ]ment and Cross–Motion for Summary Judgment ("Pl.'s Summ. J. Mot."), ECF No. 13, and the Cause of Action Institute's Motion for Leave to Amend Its Complaint ("Pl.'s Mot."), ECF No. 19. Upon careful consideration of the parties' submissions,¹ the Court concludes for the reasons set forth below that it must deny the Institute's motion to amend its Complaint, grant the Department's motion for summary judgment, and deny the Institute's cross-motion for summary judgment.

I. BACKGROUND

On July 15, 2016, the Institute sent a FOIA request by letter to the Department's Tax Division (the "Division"), "seeking production of two specific records relating to the detailing of [Department] attorneys to the White House." Compl. ¶ 6. First, the Institute sought "an email chain involving two government employees (the ‘Bringer–Wolfinger email chain’) ... [that was submitted in] May 2014." Id. ¶ 9. Second, the Institute sought "a November 2011 report entitled the Current Practices for Attorney Assignments, Transfers, and Details" to the White House. Pl.'s Facts ¶ 4; Def.'s Facts ¶¶ 3–4. The Division had previously produced these two specific records "in response to another ... FOIA request" made by the Institute. Pl.'s Facts ¶ 2. However, the Division "had withheld large portions of those records by applying ‘NR’ or ‘Non–Responsive’ labels to the redactions." Id.; see also Compl. ¶ 7. Thus, in its July 15, 2016 FOIA request, the Institute sought the two requested records in their entirety, without any non-responsive redactions. See Compl. ¶ 8.

"By letter [ ] dated August 9, 2016, [the Division] acknowledged receipt of the [Institute's] July 15, 2016 FOIA request ... and requested a conference to clarify the scope of the request." Id. ¶ 11. On August 15, 2016, the parties "held a [tele]phone conference," during which the Institute explained that the use of "non-responsive" as a label to redact information was an improper "withholding tool" and clarified that it sought only the two records in their entirety. Id. ¶ 12; see also Def.'s Facts ¶¶ 2–6. On September 20, 2016, the Division issued its final decision regarding the Institute's July 15, 2016 FOIA request as clarified, producing in its entirety the November 2011 report, without any redactions. See Def.'s Facts ¶ 7; Pl.'s Facts ¶ 7.² However, the Division subdivided the Bringer–Wolfinger email chain into nine separate records and redacted "Record 7" on the basis of Exemptions 3 and 5 of the FOIA and the remaining records as non-responsive. Pl.'s Facts ¶ 8; Compl. ¶ 17.

The Institute initiated this action by filing its Complaint on November 8, 2016, see Compl. at 1, alleging that the Department "improperly segmented the Bringer–Wolfinger email chain into nine distinct ‘records’ and improperly applied a ‘non-responsive’ designation to withhold eight of those ‘records,’ " id. ¶ 30.³ Thereafter, on January 12, 2017, the Department updated its policy regarding what constitutes a "record" under the FOIA, in which it urged agencies to "use the definition of [the term] record found in the Privacy Act," meaning that "each ‘item, collection, or grouping of information’ on the topic of the request can be considered a distinct ‘record.’ " Pl.'s Mot. to Amend, Exhibit ("Ex.") J (OIP Guidance: Defining a "Record" Under the FOIA (the "Guidance")) at 3. Later, on January 18, 2017, the Division re-processed the Bringer–Wolfinger email chain and re-produced the record to the Institute "as a single record," withdrawing all of the "non-responsive" redactions, but "redact[ing] significant portions of responsive material" pursuant to FOIA exemptions 3, 5, 6, 7(A), and 7(C). Pl.'s Facts ¶ 11; see also Def.'s Facts ¶¶ 9–11.

The Department now moves for summary judgment, asserting that its redactions of the re-processed and re-produced Bringer–Wolfinger email chain were proper, as those contents were exempt from disclosure under several FOIA exemptions. See Def.'s Mot. at 3. And, given that the Department re-produced the Bringer–Wolfinger email chain as one record, and because the Department asserts that withholding portions of the Bringer–Wolfinger email chain is proper pursuant to specific FOIA exemptions and not because they are "non-responsive," the Department contends that the issue of "whether the email chain constitutes one record or several records" is now "moot." Def.'s Mot. at 15. On February 8, 2017, the Institute simultaneously opposed the Department's motion and cross-moved for summary judgment, see Pl.'s Summ. J. Mot. at 1, arguing that "its claim against the [Department] for using ‘non-responsive’ as a redaction tool and improperly segmenting one record into multiple records is not moot," id. at 18. The Institute, however, did not oppose the Department's motion "as to its application of exemptions and redactions in the January 18, 2017 production" of the re-processed Bringer–Wolfinger email chain. Id. at 8. In response, the Department maintains its position that this case is now moot, see Def.'s Reply at 1, and argues that the Institute now effectively seeks a broad "sweeping [advisory] decision" on the definition of a "record" as used in the Department's Guidance predicated on "new and wholly unsupported allegations regarding the [Department's] recordkeeping practices," id. at 2; see also id. ("These allegations were not contained in the Complaint—let alone alleged with particularly, as required for a FOIA [policy-or-]practice claim.").

On March 24, 2017, "to resolve any dispute or ambiguity about whether [the] Institute[ ] ... has [ ] properly pled [an explicit policy-or-practice claim], [the] Institute move[d] the Court for leave to allow it to amend its complaint." Pl.'s Mot. at 3. The Department opposed the Institute's motion, arguing that the Institute "seeks to change, at this final stage of the proceedings, the fundamental nature and scope of the action." Def.'s Opp'n at 1.

II. STANDARDS OF REVIEW

A. Motion for Leave to File a Supplemental Pleading

Under Rule 15(d) of the Federal Rules of Civil Procedure, a "court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented." Fed. R. Civ. P. 15(d).⁴ Rule 15(d) aims "to make pleadings a means to achieve an orderly and fair administration of justice." Gomez v. Wilson, 477 F.2d 411, 417 n.34 (D.C. Cir. 1973) (quoting Griffin v. Cty. Sch. Bd., 377 U.S. 218, 227, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964) ). Therefore, although the decision to grant a motion for leave to file a supplemental pleading is "within the discretion of the district court," Xingru Lin v. District of Columbia, 319 F.R.D. 1, 1 (D.D.C. 2016) (quoting Wildearth Guardians v. Kempthorne, 592 F.Supp.2d 18, 23 (D.D.C. 2008) ), such motions should be "freely granted when doing so will promote the economic and speedy disposition of the entire controversy between the parties, will not cause undue delay or trial inconvenience, and will not prejudice the rights of any of the other parties to the action," Hall v. Cent. Intelligence Agency, 437 F.3d 94, 101 (D.C. Cir. 2006) (quoting 6A Charles Alan Wright & Arthur R. Miller, et al., Federal Practice and Procedure § 1504 (2d ed. 1990)).

B. Motions for Summary Judgment

The Court must grant a motion for summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). The Court must therefore draw "all justifiable inferences" in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-moving party, however, cannot rely on "mere allegations or denials." Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505 ). Thus, "[c]onclusory allegations unsupported by factual data will not create a triable issue of fact." Pub. Citizen Health Research Grp. v. Food & Drug Admin., 185 F.3d 898, 908 (D.C. Cir. 1999) (alteration in original) (quoting Exxon Corp. v. Fed. Trade Comm'n, 663 F.2d 120, 126–27 (D.C. Cir. 1980) ). If the Court concludes that "the nonmoving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof," then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, at bottom, "in ruling on cross-motions for summary judgment, the [C]ourt shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely...